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NAVY | DRB | 2004 Marine | MD04-00374
Original file (MD04-00374.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


ex-PFC, USMC
Docket No. MD04-00374

Applicant’s Request
The application for discharge review was received on 20031223. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance discharge review before a traveling panel closest to Cleveland, OH. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
Issue 1: “I have requsted my Service Record book 3 times. each time I don’t get my police record I filled out with my recruiter. He told me all he would put in it was 3 traffic offenses from 1996 which he did. Some one is hiding this record which would prove his envolvement and Master Minding of this case. He was the Marine at the time I was the civillian. I told him about my police record. He said he would fake my record for me so I could join. This Fabricated section is here.
Somewhere.
Clearly at the top of these 2 documents. A computr numbered the pages 4 and 7. Where is pgs. 5 and 6 some one hand numbered the bottom pg. 8 and 9 As if these 2 pages came in order. They don’t. There is information in between. The information is the Fake Police Record the Recruiter MR Reese fabricated. He committed the Fradulent enlistment It is impossible for it to be all my fault. This Man coacled Me into this. Some Marine he was. No integrity. He knew my Police Record was much more then the 3 traffic tickets. Also these documents begin at Item 18. “Your Selective Service Record” this is on computer pg # 4, hand written # 8. It ends on Item # 23 “Your Police record Pending charges” Now handwritten pg # 9 (making it look like the pages are sequential) computer pg # 7 (missing computer pg #’s 5 & 6) begins at Item # 37. Now where is Items # 24 – 36? Why is someone covering up this evidence? Pgs 5 & 6 Items 24 – 36 Contain a Fabricated Police record Concocted by Mr. Reese. This case is all his doing and I deserve at least the General discharge. Someone is comitting crime by hiding my documents It is my right to see them. Where is pg 5 – 6 Items 24 – 36?

Furthermore, I currently am an ID holder, a dependant of the Air Force. I would like the discharged upgraded to General and my reenlistment Code to 1 Please. I am interested in Pursing a Career in the Air force. Thank you I hope You see it my way.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Photocopy of Dependant ID Card
Excerpts from Security Clearance Questionnaire (2 pages)
 Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
          Inactive: USMCR (J)               000601 - 000606  COG
Period of Service Under Review :
Date of Enlistment: 000607               Date of Discharge: 010226

 Length of Service (years, months, days):
         Active: 00 08 20 (Does not include lost time.)
          Inactive: None
Age at Entry: 21                          Years Contracted: 5

 Education Level: 12                        AFQT: 54
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.1 (2)                       Conduct: 3.1 (2)

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (04) 001121 - 001125
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.
Chronological Listing of Significant Service Events :

001122:  Applicant UA(AWOL) since 0631, 001121.
001122:  Applicant surrendered from UA(AWOL) at 1535, 001125.


001130:  NJP for violation of UCMJ, Article 86: … absent from his unit …
 Awd forf of $502.00 per month for 1 month, and 45 days restriction and
extra duties. Appealed but never submitted.
001205:  Preliminary inquiry into the circumstances surrounding Applicant’s enlistment into the Marine Corps. Investigating Officer determined the Applicant “committed fraud by not disclosing his felony conviction before entering the United States Marine Corps.”

010112:  Applicant notified of intended recommendation for discharge with an under other than honorable conditions service characterization by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
010112:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010131:  Commanding officer recommended separation with an under other than honorable conditions discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps. The factual basis for this recommendation was the Applicant failing to disclose his felony conviction for attempted sexual assault.
010418:  SJA review determined the case sufficient in law and fact.
010420:  GCMCA [Commander, Marine Corps Air Bases, Eastern Area] directed the Applicant's separated with an under other than honorable conditions discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was separated on 20010226 with an under other than honorable conditions discharge by reason of defective enlistment and induction due to a fraudulent entry (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
Issue 1. The record does not support the Applicant’s claim of recruiter misconduct. By his own admission the applicant knew he was not eligible for enlistment in the armed forces. An official inquiry into the circumstances surrounding the Applicant’s enlistment found he plead guilty to Attempted Sexual Battery, Felony 5 th Degree. The Applicant failed to disclose these facts to the Marine Corps. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The Applicant’s service was marred by the awarding of nonjudicial punishment (NJP) on one occasion, for unauthorized absence, and his performance and conduct marks are below minimum acceptable levels. The Applicant’s conduct, which forms the primary basis for determining service characterization, reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate. It must be noted that most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher a service characterization than is due. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)
A . The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 18 Aug 95 until 31 Aug 2001, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.
B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:
                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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